[EL] Serious Question About Knox v. SEIU
Dan Meek
dan at meek.net
Fri Jun 22 17:23:13 PDT 2012
Different unions do fight for the opportunity to represent the same
block of workers. Google "unions fight each other."
Dan Meek
dan at meek.net
10949 S.W. 4th Ave
Portland, OR 97219 503-293-9021
866-926-9646 fax
On 6/22/2012 4:19 PM, Fredric Woocher wrote:
For what it's worth, in California, which has been regulating auto
insurance rates pursuant to a voter-enacted initiative (Prop 103) since
1990, the Insurance Commissioner's regulations prohibit the company's
expenditures for political contributions to be included as an expense
item in the rate base, thereby effectively requiring those expenses to
be borne by the company's shareholders and not its policyholders. Larry
Tribe filed a lawsuit on behalf of Fireman's Fund challenging the
constitutionality of the regulations on numerous, numerous grounds,
including the claim that the disallowance of expenditures for political
contributions impermissibly penalizes the insurance companies "for
exercising their First Amendment rights to free speech and to petition
the government for the redress of grievances." See /Fireman's Fund Ins.
Co. v. Garamendi/, 790 F.Supp. 938, 946 (N.D. Cal. 1992). The district
court dismissed the lawsuit on ripeness and three different abstention
grounds, so the claim was never litigated in that case, but the
regulations' exclusion of political contribution expenses was
subsequently upheld by the California Supreme Court.
Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com <mailto:fwoocher at strumwooch.com>
(310) 576-1233
*From:*law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of
*Samuel Bagenstos
*Sent:* Friday, June 22, 2012 12:31 PM
*To:* Volokh, Eugene
*Cc:* law-election at uci.edu
*Subject:* Re: [EL] Serious Question About Knox v. SEIU
I've never been especially persuaded by /Abood/ myself, but for now I
want to take it seriously. I'm simply trying to understand the limits
of the /Abood/ principle as glossed by /Knox/. And Justice Marshall's
one-justice concurrence in the judgment in /PG&E /seems to me to address
a quite different question. Justice Marshall's conclusion that PG&E
does not give up /its own/ negative speech rights simply because it is a
regulated monopoly doesn't really draw a distinction with public-sector
labor unions, nor does it say anything about whether PG&E's
/customers/ should have /Abood/-type rights to prevent PG&E from
spending their money on ideological and political speech to which the
customers object. I don't imagine you would suggest that a city could
require AFSCME to include in its dues bill a statement from National
Right to Work explaining why unionism is horrible -- but that seems to
me the precise analogy with /PG&E/. The question I posed is whether
customers of auto insurance companies who are required by state law to
purchase auto insurance if they are to register a car, are, under the
/Abood///Knox/ principle, entitled to object to the ideological or
political uses of the money they are required to pay -- just as workers
who are required by state law to contribute an agency fee if they are to
work in a unionized public workplace are, under the /Abood///Knox
/principle, entitled to object to the ideological or political uses of
the money /they/ are required to pay.
One answer to this question might be that, in the special case of auto
insurance companies whose business is mandated by the state,
/Bellotti/ and /Citizens United/ don't apply, and states can simply ban
political or ideological expression by these organizations. If that
were true, then there wouldn't be any /Abood///Knox/ problem. But that
doesn't seem to me tenable. So I'm still, honestly, wondering what the
difference is between the two situations -- or if there just isn't one.
(Also, a minor point: I certainly don't take the fact that Justice
Marshall or anyone else was a liberal as a /prima facie /reason for me,
as a fellow liberal, to agree with what he said about a particular case.
So I'm not sure what is the analytical as opposed to the rhetorical
significance of the "even-the-liberal-New-Republic" move here.)
On Jun 22, 2012, at 2:59 PM, Volokh, Eugene wrote:
I think/Abood/is wrong, chiefly because I think that the government is
free to decide to pay each employees $X and then give $Y to the union
(as, say, a "labor peace fee"), and that this is essentially what is
happening with the dues deduction in/Abood/.
But as to the dues to unions vs. payment to businesses question, I
should note that Justice Marshall discusses the latter point in/PG&E v.
Public Utilities Commission/in upholding the rights even of regulated
monopolies:
"The State seizes upon appellant's status as a regulated monopoly in
order to argue that the inclusion of postage and other billing costs in
the utility's rate base demonstrates that these items "belong" to the
public, which has paid for them. However, a consumer who purchases food
in a grocery store is "paying" for the store's rent, heat, electricity,
wages, etc., but no one would seriously argue that the consumer thereby
acquires a property interest in the store. That the utility passes on
its overhead costs to ratepayers at a rate fixed by law rather than the
market cannot affect the utility's ownership of its property, nor its
right to use that property for expressive purposes, see /Consolidated
Edison Co./ v. /Public Service Comm'n of N. Y.,/ 447 U. S. 530, 534, n.
1 (1980)
<http://scholar.google.com/scholar_case?case=1554910653142299503&q=pacific+gas+electric+first+amendment&hl=en&as_sdt=2,5>.
The State could have concluded that the public interest would be best
served by state ownership of utilities. Having chosen to keep utilities
in private hands, however, the State may not arbitrarily appropriate
property for the use of third parties by stating that the public has
"paid" for the property by paying utility bills."
And Justice Marshall joined the majority in/Abood/. Perhaps he was
mistaken in one or both cases -- as I said, I think he and all the other
Justices were in/Abood/-- but it's worth noting that this issue arose,
and even a liberal Justice such as Justice Marshall treated purchases
from businesses (even ones that one practically has to deal with)
differently from compelled dues payments to unions.
Eugene
*From:*law-election-bounces at department-lists.uci.edu
<mailto:law-election-bounces at department-lists.uci.edu>
[mailto:law-election-bounces at department-lists.uci.edu]
<mailto:[mailto:law-election-bounces at department-lists.uci.edu]>*On
Behalf Of*Mathew Manweller
*Sent:*Friday, June 22, 2012 11:46 AM
*To:*sbagen at gmail.com <mailto:sbagen at gmail.com>; liptaka at nytimes.com
<mailto:liptaka at nytimes.com>; richardwinger at yahoo.com
<mailto:richardwinger at yahoo.com>
*Cc:*law-election at uci.edu <mailto:law-election at uci.edu>
*Subject:*Re: [EL] Serious Question About Knox v. SEIU
I think the boring answer to this question, but probably the most on
point legally, is that the insurance company is spending their own money
and the SEIU is spending another person's money. Now, we as customers
may think of it as "our money" but once you give it to an insurance
company--for whatever rate/cost, whatever they plan to do with it, etc,
it is THEIR money. They don't need our permission on how to spend it. In
the case of the SEIU, they are taking someone elses money out of their
paycheck.
Central Washington University
Associate Professor of Political Science
manwellerm at cwu.edu <mailto:manwellerm at cwu.edu>
509-963-2396
?The first lesson of economics is scarcity. There is never enough of
anything to fully satisfy all who want it. The first lesson of politics
is to disregard the first lesson of economics.? ? Thomas Sowell
>>> "Liptak, Adam" <liptaka at nytimes.com <mailto:liptaka at nytimes.com>>
06/22/12 7:02 AM >>>
This interesting article by Benjamin Sachs in the Columbia Law Review
explores these questions:
http://columbialawreview.org/assets/pdfs/112/4/Sachs.pdf
________________________________________
From:law-election-bounces at department-lists.uci.edu
<mailto:law-election-bounces at department-lists.uci.edu>[law-election-bounces at department-lists.uci.edu
<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of
Samuel Bagenstos [sbagen at gmail.com <mailto:sbagen at gmail.com>]
Sent: Friday, June 22, 2012 9:57 AM
To:richardwinger at yahoo.com <mailto:richardwinger at yahoo.com>
Cc:law-election at uci.edu <mailto:law-election at uci.edu>
Subject: Re: [EL] Serious Question About Knox v. SEIU
Maybe. But (a) maybe every insurance company in my state is engaged in
some ideological/political expenditures (if not all on the same side or
the same issue), and I'd just prefer that my money go to paying claims
and associated administrative expenses rather than subsidizing political
speech on issues that I have not made my own; and (b) I don't
necessarily have to work in the public sector, not all public sector
jobs are unionized, and not all unionized public sector jobs are
represented by the same union. If I don't like AFT, I can work as a
teacher in a private school (where, if I have a union, it won't be a
public sector one), or a charter school (where if I try to unionize
they'll fire me for sure!), or I can work in a next-door district
represented by NEA.
Samuel R. Bagenstos
Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109
sambagen at umich.edu<mailto:sambagen at umich.edu
<mailto:sambagen at umich.edu%3cmailto:sambagen at umich.edu>>
http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411
http://disabilitylaw.blogspot.com/
Twitter: @sbagen
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